Lawyers for Lisa Smith, who denies membership of Islamic State, have told the Special Criminal Court that Facebook is involved in a "wholesale breach" of privacy rights by indefinitely storing users' personal messages.
Michael O'Higgins SC, for Ms Smith, is objecting to the admissibility of messages sent using Facebook between his client and known Islamist terrorists in Australia and Syria as far back as 2012.
He said it is the court's job to protect people's rights when there is a "corporation out there recording every utterance from 'Happy Birthday' up".
The court has heard that gardaí initially received some of the messages from the American authorities who were investigating John Georgelas, a known associate of Ms Smith who was wanted in the US to face terrorism charges. Georgelas is presumed to have died while fighting for Isis in Syria. Gardaí later went to a District Court and received a warrant to go to Facebook's head office in Dublin where they were given access to the same messages on the social media giant's servers.
Ms Smith (40) from Dundalk, Co Louth has pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between October 28th, 2015 and December 1st, 2019. She has also pleaded not guilty to financing terrorism by sending €800 in assistance, via a Western Union money transfer, to a named man on May 6th, 2015.
'Private conversations'
Mr O'Higgins said the conversations that the prosecution intends to introduce in evidence were, "private conversations preserved in aspic for many, many years." He added: "The idea that private conversations can be produced 10 years later and decanted into a court case is a very, very significant incursion on people's right to communicate with each other. It's at the apex of any breach of a person's rights."
Mr O'Higgins went through the Date Protection Act 2003 which he said provides no legal basis for Facebook to store private messages between users. He said the "wholesale breach" of privacy rights was also prohibited by the Constitution. He added: "My client has the constitutional right to discuss her political and religious beliefs without someone storing every utterance and storing it so it might be used years later." The right to privacy, counsel said, is the right to be left alone. "This is a wholesale breach of the right and on the state of the evidence it would appear to be systemic and a matter which is crying out for attention."
Mr O'Higgins said it is the court's job to protect people's rights when there is a "corporation out there recording every utterance from 'Happy Birthday' up." He said gardaí should not be allowed to benefit from evidence stored unlawfully and unconstitutionally by Facebook.
Counsel further told the court that the American court which first allowed the Federal Bureau of Investigation (FBI) to access Facebook's records relating to John Georgelas did not consider Ms Smith's rights. He said the subsequent handover of private, sensitive data from the FBI to gardaí is not allowed under the Data Protection Act.
In relation to the warrant obtained by gardai to access Facebook's records, Mr O'Higgins said gardai did not give the District Court judge adequate information. He said they had not revealed to the judge that they had already received the same documents from the American authorities and failed to tell the judge that Ms Smith had denied joining Isis during interviews she gave to gardaí after her arrest in early December 2019.
Sean Gillane SC for the prosecution will respond to Mr O'Higgins's arguments on Thursday. Mr Justice Tony Hunt is presiding at the three-judge, non-jury court with Judge Gerard Griffin and Judge Cormac Dunne.
